PlanPhilly: Planning Philadelphia's Future

NOTE: When PlanPhilly first posted the YouTube video about this property, it was public. It has since been made private. You can still see the first frame in the video below, but you can no longer watch it.

As soon as the green neon “Cash For Gold,” signs lit up the windows of the rowhouse-size building across Delaware Avenue from SugarHouse Casino, neighbors began trying to find out how the business could exist at that spot.

Casino-Free Philadelphia activist Jethro Heiko was driving to Boston with his wife and family for Passover when he first saw them. “We were pissed,” he said. This is just the kind of use his organization predicted casinos would bring, he said, and the kind he – and other neighborhood activists from various organizations – worked to ban from the area through zoning legislation, Heiko said. “We had been told, and shame on us for believing, these kind of uses would not be allowed.”

Maggie O'Brien and Heiko were on opposing sides of the casino issue - O'Brien's organization, Fishtown Action, aka FACT, wanted the casino for the jobs and recreation opportunities. But they had virtually the same reactions to the appearance of the cash for gold signs. "I was furious!" O'Brien said. "This is exactly what we didn't want. And we were told from the beginning this would not happen, that the overlay protected us."

At least three neighborhood organizations, Fishtown Neighbors Association,  FACT, and Northern Liberties Neighbors Association, are trying to determine exactly what the business is and if it can operate under the provisions of the Central Delaware Overlay District, a stop-gap overlay with provisions designed to protect the Central Delaware from development contrary to the city's vision for its redevelopment, and SugarHouse's Commercial Entertainment District, which prohibits certain types of nuisance businesses from operating within close proximity of the casino.

Across Delaware Avenue, people at SugarHouse noticed the green signs, too.  "We have already been in touch with community leaders to voice concern about the possibility of such a business opening at that location,” said an official statement provided by SugarHouse spokeswoman Leigh Whitaker. “We are currently seeking more information."

Sean McMonagle, the legislative assistant for Central Delaware Zoning Overlay author First District Councilman Frank DiCicco, said Monday he does not think a cash-for-gold store is allowable. Neither does Steven Weixler, chairman of the Central Delaware Advocacy Group, the organization comprised of waterfront neighborhood and organization representatives that pushed for the passage of the overlay. And neither does District Five Councilman Darrell Clarke, in whose district the store front with the green neon sits.  He is trying to stop the store from opening, said Karen Phillips, constituent services representative in Clarke's office, who said she has been investigating the situation since constituents began flooding the office with concerned calls about 10 days ago.

In fact, Phillips asked L&I to shut down the business and demand that the owner go through proper procedures under the zoning overlay. “They said they couldn't shut it down because it wasn't open,” she said. The storefront, located in a building which has clearly been recently renovated, was not open Monday afternoon. Renovations were continuing in another part of the building.

Phillips has asked planning, zoning and L&I for help as she tries to determine how the signs and the kind of store they promise could go up in the district without a request for zoning relief or some other bill going through Clarke's office, and without a plan of development going before the Philadelphia City Planning Commission.

Simple, said Don Hudson, who owns the property and is leasing it to the man who will run the business: The store-owner has permits.  “This is a jewelry store that will buy and sell gold,” said Hudson, who also owns Don's Auto & Truck Sales on Aramingo Avenue, in a brief phone interview Monday afternoon. 

Hudson said the name of his tenant who will operate the business is Kenny, but he couldn't think of his last name off-hand. He thought the store was already open. When told it wasn't, Hudson said it would be within days.

The front door was locked Monday afternoon, and the neon was the only light on. A look through the window revealed a single glass display case like those used by jewelry stores, and, just beyond, what appeared to be a security window with a place for talking and another place for passing items back and forth. No sign that advertised jewelry was seen.

L&I spokeswoman Maura Kennedy confirmed later on Monday that L&I did grant a zoning use permit in January 2010, allowing the use as a jewelry store, and granting a license for a precious metal dealer. On that permit, the owner of the property is listed as Charlotte Hudson.

On Tuesday afternoon, Kennedy called back with more information: After a review, L&I is confident they correctly issued the permit, she said.

Said Don Hudson: “The neighbors are fighting everything there is, but there is nothing they can do here.” Hudson then said he had to attend to other matters, and got off the phone.

Not so, said Northern Liberties Neighbors Association President Matt Ruben. “Permits can be appealed,” he said. And this one will be if residents of Northern Liberties or Fishtown find evidence that makes them believe L&I issued the permit erroneously, or that the business that opens is not the kind of business that was permitted.

“It's fine if it's a jewelry store – that's a permitted use,” Ruben said. “But if it's operating as a pawn shop, my understanding is that's not allowed under existing zoning.” 

Fishtown Neighbors Association Zoning Chairman Matt Karp discovered late last week that the application filed with L&I for the jewelry store contained an accessory use – a pawn shop. The granted permit does not mention a pawn shop. It also says nothing about those neon signs. “No signs on this application,” it states.  Karp interprets this to mean that signs are not covered by the permit. See some of the related documents attached below this article.

Kennedy said Tuesday that with any jewelry store, "chances are high you will also have a precious metal dealer license."

What Karp wants to know is how there can be signs on the building, and why no variance was required when the applicant sought a pawn shop use. Karp points out that pawn shops are not allowed within 500 feet of a residence or 1,000 feet of a commercial entertainment district – SugarHouse sits in one of these. Pawn shops are also specifically forbidden within the zoning overlay.

“The FNA will continue to look into this project with the various city agencies to confirm compliance,” Karp said. “If it is not in compliance and requests a variance we will go through our standard procedures to determine the community’s feelings on this use. If it is in compliance we will weigh other options.”

Everyone but Hudson agrees the situation is complicated. Here's a more detailed look:

The neon Cash for Gold signs and the front door to the business face Delaware Avenue. But the permit application and granted jewelry store permit list the address as 112 E. Allen Street.

A You Tube video and text that seem to have been posted by someone working for the property owner, promotes the location as 1014 Delaware Ave, but says it backs up to 112 E. Allen Street, which is owned by the same person.  The video, entitled "Honest Don Productions Presents 'A Pot of Gold,' " details improvements that have since been made to the property.

Watch the YouTube video.

“The owner believes this location would be perfect for a gold exchange, jewelry shop or a pawn shop, and I agree,” the posting, last updated about two years ago, reads. “The address of the new Sugar House casino is 1013 Delaware Ave. This gold mine sits directly across from the new casino. Your clients can literally walk out the front door of the casino cross the street and walk right into your front door.”

The Central Delaware Zoning Overlay specifically lists pawn shops and check cashing stores on its list of prohibited uses.  There is no mention of cash-for-gold stores.

To CDAG's Weixler, cash-for-gold is another name for pawn. “We would argue that it is a pawn shop. You can take an item of value into the store and you can sell that item,” he said. CDAG is allowing FNA and the Northern Liberties Neighbors Association to take the lead on this issue, but will take action if there is a hearing and/or legislative proposal related to the matter, Weixler said. “It is so inappropriate to what the overlay ordinance says. In spirit of overlay ordinance, this use just doesn't fit.

But Natalie Shieh, a program coordinator at the zoning code commission, said the overlay is “not clear,” on the cash-for-gold issue. This is why the new zoning code – which will supersede the Central Delaware Overlay when it is approved -  specifically names cash-for-gold establishments. “The proposed new code tries to address this issue by inserting a definition in the pawn shop category that captures cash-for-gold facilities,” she said.

Bill Kramer,  development planning division director of the Philadelphia City Planning Commission,  said while the overlay doesn't specifically address a cash-for-gold use, such a use “borders on a payday lender and/or a pawn shop.”

A tricky point, Kramer said, is the fact that jewelers legitimately purchase gold and silver. His own mother, in fact, sold a silver tea set she didn't use to a jeweler in Center City, he said.  So would an L&I inspector have to try and tease out if a business really was mostly a store that sold jewelry? It could be a nightmare, he said.

No L&I inspector will face that task, Kennedy said. The precious metal dealing portion of  the business may not exceed 25 percent of the physical space of the business, she said. The zoning laws specify floor area, so it does not matter what percentage of the store's receipts come from buying precious metals.

An L&I inspector may visit the store, once it is open, to check on the floor area percentages, Kennedy said. For the most part, inspecitions are complaint-driven - inspectors go out when L&I is told of a potential problem. However, the department has begun pro-active inspections of businesses in commercial corridors under a year-and-a-half-old program. So far, 2,000 businesses have been inspected, she said.  A month before the inspections, businesses receive a letter telling them it's coming. "Our role is not to play gotcha, it is compliance," Kennedy said.  Businesses on nearby Frankford Avenue have gone through the inspection, she said. She did not know when the inspections might come to Delaware Avenue.

Kramer said if the Delaware Avenue/Allen Street project came to the Planning Commission for review, he believes commissioners would question the use and “I think they would be within their rights” to vote no, he said.  The applicant could appeal in the Court of Common Pleas.

The Central Delaware Overlay requires that many projects  — including all on the SugarHouse side of Delaware Avenue and projects on commercially zoned parcels — come before the planning commission for review. Developers have to provide a highly detailed Plan of Development for approval.

Both Phillips, in Clarke's office, and McMonagle, in DiCicco's, believe this project should have had a development plan review. As stated above, L&I says it issued the permit correctly.

The underlying zoning at 112 E. Allen Street is G-2 industrial. But Kennedy said in 2008, the Zoning Board of Adjustment granted a variance that states the rear, ground floor of the building (in other words, the portion where the business facing Delaware Avenue is) can have uses compatible with C-1 commercial.

PlanPhilly did not have the specific address of the parcel nor the copies of the various applications and permits when interviewing Kramer, of the planning department, on Monday. But Kramer said any project slated for a commercial parcel in the overlay district should result in a Plan of Development before the planning commission. 

Any project on an industrial parcel that is not on the river side of the street would not require a plan of development approval, he said – but it would also not allow for a commercial use, such as a jewelry store or cash-for-gold business. However, if a building in an industrial zone, but within a certain span of time had a commercial use, a commercial use would be allowed there, without a plan of development, Kramer said.

When asked how the plan of development provision of the overlay would apply or not apply to this parcel, which is technically G2 industrial but has a variance for C1 commercial, Kennedy referred the question to the planning commission. Kramer, the commission's expert on the overlay, could not be reached Tuesday.

O'Brien, from FACT,  said that residents are now on high alert. She is concerned that would-be developers or business owners may be reading the overlay in search of ways to skirt the intent of the law.  "The next thing, someone will say 'We are opening a restaurant' and the waitresses are going to be topless," she said.

"Our concern is that if one thing squeezes by that we were told could not happen there, that there are other ways around the overlay to get other things that we don't want."

Reach the reporter at kgates@planphilly.com.